824 F.

2d 154

Al MANCUSO, Petitioner-Appellant,
v.
Charles SCULLY, Superintendent, Green Haven Correctional
Facility, Robert Abrams, Attorney General of the State of
New York, and Elizabeth Holtzman, District Attorney of Kings
County, Respondents-Appellees.
No. 1025, Docket 86-2451.

United States Court of Appeals,

Second Circuit.
Argued April 23, 1987.
Remanded April 30, 1987.
Decided after Remand July 27, 1987.

Jane Simkin Smith, Vivian Shevitz, Brooklyn, N.Y., for petitionerappellant.

Elizabeth Holtzman, Dist. Atty., Kings County, Janet M. Berk, Barbara D.
Underwood, Asst. Dist. Atty., Kings County, Brooklyn, N.Y., for
respondents-appellees.
Before KAUFMAN, MESKILL and MAHONEY, Circuit Judges.
PER CURIAM:

Mancuso appeals from the order of the United States District Court for the
Eastern District of New York, Platt, J., denying his petition for a writ of habeas
corpus. In a previous appeal we reversed an order granting habeas corpus relief
to Mancuso, Mancuso v. Harris, 677 F.2d 206 (2d Cir.), cert. denied, 459 U.S.
1019, 103 S.Ct. 382, 74 L.Ed.2d 514 (1982) (Mancuso I ), holding that the jury
instructions in his New York Supreme Court trial for felony murder did not
violate Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39
(1979).

Subsequently, Mancuso sought a new writ, requesting reconsideration of our

decision in light of Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74
L.Ed.2d 823 (1983), Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d
460 (1986), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d
344 (1985). Besides repeating the Sandstrom claim, Mancuso's petition argued
for the first time that the jury was improperly permitted to impute criminal
intent to Mancuso if it found that his co-defendants harbored the requisite
intent. Judge Platt denied the petition but issued a certificate of probable cause.
28 U.S.C. Sec. 2253. After hearing the appeal, we noted that the imputed intent
claim had not been exhausted in the New York courts. We published an opinion
vacating Judge Platt's order and remanding to the district court with instructions
to dismiss the petition without prejudice for lack of exhaustion under Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Mancuso v.
Scully, 818 F.2d 1 (2d Cir.1987). Before the mandate issued, Mancuso
abandoned his unexhausted claims and requested reconsideration of our
Mancuso I decision on his Sandstrom claim. We grant the request for
reconsideration and now affirm the order of the district court.
3

Mancuso's felony murder conviction was based on a killing during a burglary.

As part of a lengthy and detailed charge, the trial justice instructed the jury:

4
Everyone
is presumed to intend the natural consequences of his act and unless the
act is done under circumstances or conditions that might preclude the existence of
such intent, you, the jury, have to find, have a right to find the requisite intent from
the proven actions of an individual.
5

Mancuso I, 677 F.2d at 207. We examined ameliorative language in other

portions of the charge and concluded that "the charge, when viewed as a whole,
made it quite clear to the jury that it was to consider all of the evidence in the
case in deciding whether [Mancuso] possessed the intent necessary to commit
the crime of burglary." Id. at 211. Unlike the circumstance in Sandstrom,
Mancuso's specific intent was not the principal issue before the jury, and
therefore there was "no 'significant possibility that harm was done.' " Id.
(quoting Nelson v. Scully, 672 F.2d 266, 272 (2d Cir.), cert. denied, 456 U.S.
1008, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982)).

The cases decided since our first review of Mancuso's claim do not require a
change in result. Rose v. Clark [--- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460
(1986) ] decided what the Supreme Court in Connecticut v. Johnson [460 U.S.
73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) ] was unable to decide: "an otherwise
valid conviction should not be set aside if the reviewing court may confidently
say, on the whole record, that the [Sandstrom ] error was harmless beyond a
reasonable doubt." --- U.S. at ----, 106 S.Ct. at 3105 (citing Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and quoting
Delaware v. Van Arsdall, 475 U.S. 673, ----, 106 S.Ct. 1431, 1435, 89 L.Ed.2d
674 (1986)). Automatic reversal following Sandstrom error is only required if
the error was sufficient to produce a fundamentally unfair trial, one in which
the basic trial process was aborted. Clark, --- U.S. at ---- & n. 6, 106 S.Ct. at
3106 n. 6.
7

Mancuso argues that Mancuso I was flawed under Francis v. Franklin [471 U.S.
307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) ]. We disagree. The question in
Franklin was whether a reasonable juror could have understood the offending
portion of the charge as a mandatory presumption that shifted to the defendant
the burden of persuasion on the element of intent once the state had proved the
other elements of the offense charged. In Mancuso I we were mindful that lack
of intent to commit the predicate act was not the thrust of the defense case. We
considered the disputed instructions and found them free of any improper
burden-shifting effect on the jury. Our ruling that the disputed instruction was
harmless was based on its possible effect on the jury, see, e.g., 677 F.2d at 211
("We find that the charge, when viewed as a whole, made it quite clear to the
jury that it was to consider all of the evidence in the case in deciding whether
the defendant possessed the intent necessary to commit the crime of burglary.")
(first emphasis added), as required by Franklin. We see no reason to change our
decision in Mancuso I.

Mancuso's suggestion that the jury may have believed that the disputed portion
of the charge required the jury to presume that he intended to kill is incredible
in view of the trial court's lengthy and accurate explanation of the legal
relationship between felony murder and the underlying felony, burglary,
including a detailed discussion of intent. See, e.g., J.App. at 32 (quoting jury
charge): "intent to kill need not be established. But, the intent to commit the
underlying felony must be established."

Mancuso had a fair trial and his conviction should not be set aside. The order of
the district court denying the petition for a writ of habeas corpus is affirmed.